1.5 JR Remedies

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Queensland University of Technology

Remedies STATUTORY REMEDIES —O RDER TO R EVIEW • Available where Statutory JR applies—‘decision of administrative character made under an enactment’ • Only one remedy “statutory order of review”—no need to choose between writs: ADJR s5 | JR s20 (A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds); Orders which can be made • Quashing or setting aside (=certiorari): s16(1)(a) ADJR | s30(1)(a) JR (an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies) o Generally quashed at date of order but may be changed to date of decision (void ab initio) under s16(1)(a) ADJR: Wattmaster Alco Pty Ltd v Button (TJ quashed decision from date of decision—duty paid, so questions as to how much recoverable—appeal  FFC said possible but inappropriate in this case) • Referring for further consideration: s16(1)(b) ADJR | s30(1)(b) JR (an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit) • Declaring the rights of the parties: s16(1)(c) ADJR | s30(1)(c) JR (an order declaring the rights of the parties in respect of any matter to which the decision relates); s16(2)(a) ADJR | s30(2)(a) JR (conduct); s16(3)(b) ADJR | s30(3)(b) JR (failure to make a decision); o Declaration can be made to assist in other (civil) cases: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) (detention order made not for deportation but to keep person in Aus to use as witnesses—improper purpose  declaration that detention order was unlawful = false imprisonment—would help in civil action) • Directing parties to do something: s16(1)(d) ADJR | s30(1)(d) JR (an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties) s16(2)(b) ADJR | s30(2)(b) JR (conduct); s16(3)(c) ADJR | s30(3)(c) JR (failure to make a decision); o Cannot award damages: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) (detention order made not for deportation but to keep person in Aus to use as witnesses—improper purpose  declaration that detention order was unlawful = false imprisonment—would help in civil action) o Substitution of a different decision (as opposed to sending back—merits review ↔ JR) may be appropriate where effect of JR is that no other decision can be made: MIMEA v Conyngham (1986) (recommendation to Minister to deny visa to travelling music group —first instance ordered opposite decision  should not have substituted—violates merits review ↔ JR distinction || but in some cases may be permissible) • ie—where Minister does not have discretion • Not just generally where ground is unreasonableness: MIMEA v Conyngham (first instance) • JR for failure to make a decision → can direct to make a decision: s16(3)(a) ADJR | s30(3)(a) JR General Points • Can vary or revoke these orders: s16(4) ADJR | s30(4) JR • State courts don’t have jurisdiction to review decisions of federal decision-makers: AD(JR) Act, s9 Andrew Trotter LWB335 Administrative Law • Section 10 AD(JR) Act provides a wide jurisdiction for other remedies under ADJR Act to be provided, and allows courts to stop decisions from being made where there may be a better remedy (s10(2)(b) AD(JR) Act) o Section 10 JR Act is enacted in similar terms as s10 of the ADJR Act Severance of offending part of decision • Cannot sever where offending part is basic or integral to the entire decision: Parramatta City Council v Kriticos [1971] 1 NSWLR 140 • s46(b) Acts Interpretation Act 1901 (Cth) Andrew Trotter LWB335 Administrative Law C OMMON LAW REMEDIES —P REROGATIVE W RITS History & Purpose • designed to stop travelling judges from dispensing the incorrect law • evolved to allow the courts to control quasi-judicial tribunals and administrative bodies • In Australia o 1823 Charter of Justice in NSW created the Superior Court of record, which had the jurisdiction of the Courts of Kings Bench, Common Pleas and Exchequer at Westminster o the creation of each colony’s Superior court gave them the inherent jurisdiction of being able to introduce the writs Types • Certiorari—quashes a decision (decision has no legal effect) • Prohibition—prohibits a decision • Mandamus—compels a decision according to law • Quo warranto—prevents usurping public office (extinguished under JR Act, Pt 5) • Habeas Corpus—commands executive government to bring a person before the court, to determine the basis upon which they are detained Jurisdiction to issue prerogative writs → If can’t pursue under Pt 3 JR Act because not ‘made under an enactment’, etc → fall back on CL JR: Pt 5 JR Act High Court: s75(v) Constitution In all matters: … (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction. • Original jurisdiction to hear cases of Mandamus or prohibition in regards to acts of the Commonwealth: Plaintiff s157/2002 v Commonwealth (2003) o Certiorari is ancillary and implied by the wording of s75(v): Ex parte Aala (2000) o Certiorari for error of law on the face of the record → jurisdiction in ss 75(iii) or 76 • Considered these as ‘constitutional writs’, rather than prerogative writs so they come without the baggage of the history of prerogative writs: Re Refugee Review Tribunal, Ex parte Aala (2000) o Cannot be removed by legislation: Plaintiff S157 o Can award against Supreme Courts • Constitutional writs only available to correct jurisdictional error: Re Refugee Review Tribunal, Ex parte Aala (2000) (RRT breached rules of NJ  JE) o Certiorari for error of law on the face of the record → jurisdiction in ss 75(iii) or 76 • Injunction available for wider range of errors: Plaintiff S157/2002 v Commonwealth Federal Court • The Federal Court has original jurisdiction to judicially review: s39B(1) Judiciary Act 1903 (Cth) but not where— o Prosecution started by officers of the Cth but commenced in court in State or territory: s39B(1B) o Prosecution for criminal offence under law of state, territory or Cth on foot and applicant is seeking review against officers of the Cth relating to related criminal justice process: s39B(1C)  Unless start process before prosecution started: s39B(1D) Andrew Trotter LWB335 Administrative Law o Proceedings or appeals before Fam Ct, or courts of state or territory, and applicant is seeking review against officers of the Cth relating to a related civil proceeding decision: s39B(1EA) Queensland • Historically, Supreme Court of Queensland Act 1867 (Qld) established the Queensland Supreme Court, which had the jurisdiction of the supreme courts of common law, and had the power to issue prerogative writs. • Now Judicial Review Act 1991, pt 3, s43 • The original writs (mandamus, certiorari and prohibition) no longer to be issued by the court: Judicial Review Act 1991, s41(1) o Now has power to issue prerogative order—available where you would otherwise be able to get the writ: s41(2) (effect is the same) • The requirement is now that an application for review be made: s43(1) JR Act • Writ of quo warranto abolished in Queensland: s42(1) JR Act • The nature of the relief pleaded as part of the order remedy in the nature of the relief: s42(2) JR Act. o Eg: order in the nature of certiorari Requirements for relief Certiorari and prohibition (originally for jurisdictional error of visiting judges—extended to other grounds) Two elements of the ‘Atkin formula’: R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co Ltd (1920) per Lord Atkin 1. Decision is an exercise of public power or authority (=justiciability) Private Power → not available • power to enforce contracts, arbitration, or the actions of a private club or association: Griffith University v Whitehead [2003] (discipline staff for changing student grade to ensure granting of financial assistance  no JR) Griffith University v Tang (decision to expel a student from the PHD program for falsifying evidence  no JR) • Private powers of public bodies: R v British Broadcasting Corporation; Ex parte Lavelle [1983] (decision of the public body to dismiss an employee under contract) Public Power → available • Statutory power—Courts clearly able to review: R v Toohey o Regardless of who makes decision—even where low-ranking public official: R v Toohey; Ex parte Northern Lands Council (1981) (land rights decision made by NT Land Commissioner (under Norther Territory (Self-governing) Act in bad faith with ulterior purpose  irrelevant whether examined by high or low ranking official) o Public authorities, tribunals etc = JR  • Prerogative power— Now subject to review: Ex parte Laine (UKCA) (Home Office non- statutory compensation scheme for crime victims—wife of police officer disputing amt  decision reviewable notwithstanding lack of legislation || failed on merits); Council of Civil Service Unions (HL) o historically unwilling to judicially review: Communist Party Case (ignored by R v Toohey) o includes power on immigration: Ruddock v Valdaris (2001) (keeping illegal aliens out of the country was a prerogative power  reviewable) Andrew Trotter LWB335 Administrative Law • Magistrates’ committal hearings—subject to review: Commissioner of Police v Cornack [2003] QSC 026 (committal hearings administrative rather than judicial); Sankey v Whitlam (1978) 21 ALR 505 (note NSW is different) Areas of Doubt • Must be justiciable—May refuse judicial review of high level political or policy decision (economic/political/social issues): Council of Civil Service Unions (HL) (Union workplace relations disputes in GCHQ—Thatcher outlawed as affecting homeland security  prerogative decisions judicially reviewable but declined to intervene given political implications) o Decisions made by cabinet: Minister v Peko-Wallsend (inclusion of Kakadu as protected site by cabinet—challenged by mining company  declined to intervene || conflicting opinions between justices as to whether this was all cabinet decisions) o Broader implications must be considered: SA v O’Shea (Cabinet rejecting parole board recommendation, contrary to custom  declined to interv
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